Exhibit 10.1
SETTLEMENT AND RELEASE
This Settlement and Release Agreement (this "Agreement") is entered into
this 25th day of June, 2003, by and between Vital Living, Inc., and its parents,
subsidiaries, divisions and affiliated entities (collectively, "VL") on the one
hand, and Xxxxxxx Xxxxxx ("Xxxxxx" or "Employee"), on the other hand with
respect to the matters set forth below.
RECITALS
A. As of November 20, 2002, VL and Employee entered into an employment
agreement (the "Employment Agreement") pursuant to which Employee
agreed to provide VL with his executive services as President of VL;
B. VL and Employee now desire to terminate Employee's employment
relationship with VL in an amicable manner as of the date hereof;
C. In connection with the termination of Employee's employment
relationship with VL, VL will provide Employee with the Stock
Payments (as such term is defined in Paragraph 3 below), as well as
the other benefits and payments due under Paragraph 3, subject to
the other terms of this Agreement; and
D. Employee acknowledges that except as to the payments and other
benefits due him under this Agreement, upon the execution of this
Agreement, Employee will have been paid all monies, including,
without limitation, all wages, salary, vacation, overtime, draw,
bonuses and/or commissions, owed to him and that VL shall have no
further obligations to Employee arising out of or related to
Employee's employment by VL and the Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto hereby agree as follows.
1. SEPARATION.
VL has specified that Employee's last day of employment with VL will be
deemed to be June 1st, 2003, and that said date shall be Employee's last
required day to report to the office, unless required under the terms of this
Agreement.
2. RELEASES.
In consideration for the covenants and agreements contained herein,
including the continuing obligations set forth in Paragraphs 3 and 4, the
parties agree as follows:
(a) Release by VL.
(i) Except as set forth in subsection (ii) of this Paragraph
2(a), VL, for itself and on behalf of its parent, affiliated or related business
entities, shareholder(s), directors, officers, partners, attorneys, employees,
agents, representatives, successors and assigns, hereby irrevocably and
unconditionally releases and forever discharges Employee, his spouse, children,
dependents, agents, legal representatives, descendants, ancestors, executors,
administrators and assigns, from any and all claims, demands, actions or causes
of action, whether known or unknown, up to the date of this Agreement, including
but not limited to any and all claims pertaining in any way to Employee's
employment with or termination from VL and claims arising under any express or
implied contract, or claims relating to fraud in the inducement of VL into
entering into that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") made and entered into as of October 23, 2002 by and among VL, MAF
Bionutritionals, LLC, ("MAF"), and Employee, personally and as representative of
Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Quick, III, Xxxxxx X. Quick and
Xxxxxxx Xxxx (collectively, the "Other Holders").
(ii) Notwithstanding the foregoing, VL expressly reserves the
right to the claims it may have against all the existing shares of Common Stock
(the "Escrowed Shares") which are held in the stock escrow account (the "Escrow
Account") entered into as of November 20, 2002, by and by and among VL, MAF, and
Employee personally and as representative of the Other Holders, and Mercantile
National Bank-California (the "Escrow Agent") pursuant to the terms of the
escrow agreement of such date (the "Escrow Agreement") for security in
connection with either (x) and fraudulent activities of Employee which have not
been disclosed to Employee during the term of the Employment Agreement, or (y)
the violation of any representations and warranties, or any other ongoing
covenants, which were made pursuant to the terms of Stock Purchase Agreement,
respectively. In the event a claim is asserted by VL pursuant to the Stock
Purchase Agreement, which claim is resolved pursuant to the dispute resolution
provisions of the Escrow Agreement in favor of VL, whether by agreement of the
parties or through adjudication, Employee agrees, on his own behalf, that his
shares in the Escrow Account shall be the first shares surrendered to satisfy
the claim. VL hereby irrevocably and unconditionally releases and forever
discharges Employee, his spouse, children, dependents, agents, legal
representatives, descendants, ancestors, executors, administrators and assigns,
from any and all claims, charges, complaints, and liabilities of any kind or
nature whatsoever, known or unknown or suspected, arising prior to the date of
this Agreement, that VL at any prior time had or claimed to have, including,
without limitation, any and all claims related or in any manner incidental to
Employee's employment with VL or to Employee's termination of employment. This
release expressly excludes claims by VL to enforce Employee's obligations under
this Agreement.
(iii) Waivers. Other than VL's right to proceed against the
Escrowed Shares, (with respect to Employee's shares) VL further agrees,
covenants, represents and warrants that the releases set forth in this Paragraph
2 shall include any and all claims which it may have against Employee, arising
out of, in whole or in part, the Stock Purchase Agreement ,the Employment
Agreement, or Employee's employment, with VL or its subsidiary, MAF (the "VL
Claims"), and that all rights and benefits conferred to VL by the provisions of
Section 1542 of the Civil Code of California, or any other statutes or
decisional authority to the same effect in
2
any state, province or municipality, are hereby expressly waived. Section 1542
of the Civil Code reads as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
In waiving the provisions of Section 1542 of the Civil Code (and the
provisions of any other law or statute of any other jurisdiction of similar
import), VL acknowledges that it may hereafter discover facts in addition to or
different form those which it now believes to be true with respect to the
subject matter of the VL Claims, disputes, and other matters herein released,
but agrees that it has taken that possibility into account in determining the
amount of consideration under this Agreement and that the release herein given
shall be and remain in effect as a full and complete general release
notwithstanding the discovery or existence of any such additional or different
facts, of which VL expressly assumes the risk.
For the avoidance of doubt, the foregoing waivers do not preclude VL from
asserting a claim against the Escrowed Shares held in respect of the Other
Holders.
(b) Release by Coppel.
(i) Basic Release. Upon execution of this Agreement and the
expiration of the Revocation Period, and except as set forth in the final
sentence of this Paragraph 2(b)(i), Employee hereby unconditionally releases and
forever discharges VL and all of its parent, affiliated, or related business
entities, its shareholder(s), directors, officers, partners, attorneys,
employees, agents, representatives and their successors and assigns and each of
them from any and all claims, demands, actions or causes of action, or charges
of discrimination arising out of or relating to Employee's employment
relationship with VL or severance therefrom, whether known or unknown, up to the
date of this Agreement including, but not limited to: (1) any and all claims
whatsoever pertaining in any way to Employee's employment by VL or the
termination of Employee's employment by VL; (2) any and all claims pertaining in
any way to any wages, salary, vacation, overtime, draw, bonuses and/or
commissions arising from Employee's employment by VL; and (3) all claims
whatsoever arising under any express or implied contract or under any Federal,
State or local employment statute or ordinance, regulation or interpretation,
including but not limited to, Title VII of the Civil Rights Act of 1964, as
amended; the Age Discrimination in Employment Act of 1967, as amended; the
Americans with Disabilities Act of 1990; the National Labor Relations Act , as
amended; the Civil Rights Act of 1866, as amended; the Employee Retirement and
Income Security Act; or under any other employee relations laws or applicable
state and local laws or causes of action sounding in tort or in contract, and
including any claims for wages, monetary or equitable relief, damages of any
nature and attorneys' fees (collectively, the "Claim"). Employee hereby
irrevocably and unconditionally releases and forever discharges VL and all
persons acting by, through, under, or in concert with VL from any and all
claims, charges, complaints, and liabilities of any kind or nature whatsoever,
known or unknown, or suspected, arising prior to the date of this Agreement,
that Employee at any prior time had or claimed to have, including, without
limitation, any and all
3
claims related or in any manner incidental to Employee's employment with VL or
to Employee's termination of employment. This release expressly excludes claims
by Employee to enforce VL's obligations under this Agreement.
(ii) Waiver of Age Discrimination Claims. Notwithstanding anything
to the contrary herein, Employee's waiver and release under the Age
Discrimination in Employment Act of 1967, shall only be effective as follows:
(A) Employee shall deliver to VL a fully executed waiver letter in
the form attached hereto as Exhibit "A" (the "Age Discrimination Waiver Letter")
on the date that this Agreement is signed.
(B) The Age Discrimination Waiver Letter shall be revocable by
Employee for seven (7) days (the "Revocation Period") following his delivery
thereof to VL in accordance with Paragraph 2(b)(ii) hereof and such revocation
shall be made by Employee by sending a written letter of revocation by certified
mail, return receipt requested to Xxxxxx X. Xxxxxx., c/o Vital Living, Inc.,
0000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, 00000.
(C) If Employee does not revoke the Age Discrimination Waiver
Letter on or before the expiration of the Revocation Period, the Age
Discrimination Waiver Letter shall, automatically and without any further act by
Employee, become final and binding upon VL and Employee on the first day
succeeding the expiration of the Revocation Period (such date referred to as the
"Age Discrimination Waiver Effective Date"). In delivering the Age
Discrimination Waiver Letter, it is the express intent of Employee to waive his
rights under, and in accordance with the expiration of, the Age Discrimination
in Employment Act of 1967 and that in the event of any failure or
ineffectiveness of such waiver, VL shall not have received the benefits intended
to be conferred upon it by Employee in exchange for the benefits conferred by VL
to Employee hereof.
(iii) Waivers. Employee further agrees, covenants, represents and
warrants that the release set forth in this Paragraph 2 shall include any and
all claims which he may have against VL, arising out of, in whole or in part,
the subject matter of the Claim, and that all rights and benefits conferred to
Employee by the provisions of Section 1542 of the Civil Code of California, or
any other statutes or decisional authority to the same effect in any state,
province or municipality, are hereby expressly waived. Section 1542 of the Civil
Code reads as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
In waiving the provisions of Section 1542 of the Civil Code (and the
provisions of any other law or statute of any other jurisdiction of similar
import) , Employee acknowledges that he may hereafter discover facts in addition
to or different form those which he now believes to be true with respect to the
subject matter of the Claim, disputes, and other matters herein released, but
agrees that he has taken that possibility into account in determining the amount
of
4
consideration under this Agreement and that the release herein given shall be
and remain in effect as a full and complete general release notwithstanding the
discovery or existence of any such additional or different facts, of which
Employee expressly assumes the risk.
(iv) Actions against the Escrowed Shares. Employee further agrees
that with respect to the Escrowed Shares (whether held in respect of his
interest or in respect of the shares held for the benefit of the Other Holders)
that he will take no action in opposition to any claims that VL may have against
the Escrowed Shares. For the avoidance of doubt, the intent of the foregoing is
that with respect to the Escrowed Shares held in respect of Employee, Employee
will not contest any claim. With respect to the Escrowed Shares held in respect
of the Other Holders, Employee, as Representative, will not affirmatively advise
the Other Holders to contest such claims, but will solely act upon the decisions
made by the Other Holders in the event that such Other Holders wish to contest a
claim
3. VL'S OBLIGATIONS TO EMPLOYEE.
(a) Payment. VL agrees to purchase from Employee a total of One Hundred
Forty-Four Thousand (144,000) shares (the "Repurchase Shares") at the rate of
Twenty-Four Thousand Shares per month for six (6) months ("Stock Payment")
beginning on the date of this Agreement, at a price of $.50 per share, provided,
however, that if 75% of the closing bid price of VL's common stock is less than
$.50 on the last day of the applicable month (the "Closing Monthly Price") the
purchase price will be 75% of the Closing Monthly Price. In no event shall the
purchase price be greater than $.50 per share. Each of the Stock Payments will
be paid by check or wire transfer and delivered to Employee within five (5) days
of receipt by VL of stock certificates from Employee representing the
Repurchased Shares for the applicable month. The first payment hereunder shall
be made after the expiration of the Revocation Period.
(b) Reimbursement of Verified Credit Card Expenses. Attached hereto as
Exhibit "B" are various credit card statements which Employee represents and
warrants to VL are actual, valid business charges that Employee incurred in the
normal course of Employee's employment. The amount of such charges are
approximately $12,000. VL hereby agrees to pay such expenses. VL shall pay
$1,000 per month on each charge card until the $12,000 and interest thereon are
paid in full.
(c) SBA Loan. Pursuant to Section 6 (c) of the Employment Agreement, VL
shall continue to maintain the indemnity on the SBA Loan (as such term is
defined in the Stock Purchase Agreement); provided however, such indemnity will
not apply in the event that Employee, either directly or indirectly, causes a
default to be called by Commerce Bank (or any successor) on such loan. Employee
shall not be in default of this Agreement as a result of providing truthful
testimony or information should there by an inquiry from Commerce Bank, or a
court or administrative agency of competent jurisdiction regarding the SBA Loan.
Notwithstanding the preceding, all inquiries shall be subject to the provisions
of Paragraph 4 (i) below.
5
(d) Boulder Endurance Co. Inc. Indebtedness. VL agrees to continue making
payments on the Boulder Endurance Co. Inc. promissory note pursuant to the terms
of the Stock Purchase Agreement.
4. EMPLOYEE'S OBLIGATIONS TO VL. Employee agrees that, in consideration for the
release provided for above, the following shall apply, with the understanding
that the documents required pursuant to Paragraphs 4 (a), (b) and (c) shall not
be effective until the expiration of the Revocation Period:
(a) Surrender of Restricted Stock. Concurrent with the execution of this
Agreement, Employee agrees to (i) surrender to VL Two Hundred Eighty Thousand
(280,000) shares of VL's common stock in Employee's possession, endorsed in
blank for cancellation by VL (the "Surrendered Shares") and (ii) to comply with
the provisions of Paragraph 2 (b) (iv) above.
(b) Resignation as President and as a member of VL's Board of Directors.
Employee shall concurrently submit his resignation as President of VL and as a
member of VL's Board of Directors, effective as of the date of this Agreement,
such resignation to be in the form attached hereto as Exhibit "C-1". VL agrees
to hold the resignation until the expiration of the Revocation Period.
(c) SEC Letter. Employee shall deliver the letter attached hereto as
Exhibit "C-2" for filing with the Form 8-k to be filed with the Securities and
Exchange Commission in substantially the form attached hereto as Exhibit "C-3",
which will be filed by the Company relative to the matters covered by this
Agreement.
(d) Voting Rights to Employee's Shares of Restricted Stock. Employee
agrees that the right to vote all Four Hundred Ninety-Three Thousand Nineteen
(493,019) shares of VL common stock held by Employee (collectively, the
"Remaining Shares") shall be assigned to Xxxxxxx X. Xxxxx ("Xxxxx") and Xxxxxx
X. Xxxxxx ("Xxxxxx") for the period covered under the Lock-Up Period (as such
term is defined in Paragraph 4 (e) below). Employee shall execute an amendment
to that certain Voting Agreement, dated November 20, 2002 between Edson, Benson,
Coppel and the other parties specified therein to eliminate the obligation of
any parties thereto to vote for Coppel as a director of VL, provided, however,
that Employee's vote under the Voting Agreement shall be assigned to Xxxxx and
Xxxxxx. For the avoidance of doubt, the Remaining Shares includes the Repurchase
Shares.
(e) Lock-up for the Remaining Shares. For a period of one year from the
effective date of this Agreement, Employee shall not sell, transfer, pledge
hypothecate or otherwise dispose of, any shares of VL common stock other than
pursuant to Section 3 (a) above (such one year period being referred to herein
as the "Lock-Up Period"). After the expiration of the Lock-Up Period, Employee
agrees, with respect to the Remaining Shares, that Employee shall be prohibited
from selling in excess of five percent (5%) of the Remaining Shares less the
Repurchase Shares in any calendar month, or 17,451 per month, which ever is
greater.
(f) Assignment of Intellectual Property Rights. Employee hereby assigns to
VL the entire right, title, and interest in and to all inventions, discoveries,
and improvements relating to
6
VL's business, whether patentable or not, that Employee conceived or made during
Employee's employment with VL. Employee hereby agrees that all copyrightable
works relating to VL's business that were created by Employee during Employee's
employment with VL shall be deemed a work for hire. Should for any reason such
work or works not be construed as a work for hire, then this Agreement shall
operate as an assignment of all right, title, and interest in such work(s) to
VL. Employee grants to VL an irrevocable power of attorney, which grant is
coupled with an interest, to execute, in the name of Employee, any assignment,
transfer agreement, xxxx of sale, notice or other agreement necessary to
effectuate any transfer contemplated under this Paragraph 4(f).
(g) Future Relationship. Employee expressly and specifically agrees to
the following:
(i) To the extent he has not already done so, to immediately return
to VL all corporate property obtained by Employee in connection with or during
his employment by VL. Said property may include, but is not limited to, laptop
computer, keys, access cards, notes, files, computer tapes or discs, computer
printouts, input computer systems (whether optical, visual, digital or magnetic)
or any other information/materials which Employee either obtained from VL or
from any of its customers or employees.
(ii) To fully disclose upon reasonable request to Xxxxx and/or
Xxxxxx any and all information concerning prior or pending matters and/or deals
on which Employee has been working while employed by VL.
(iii) To make any and all business introductions as reasonably
requested by Xxxxx and/or Xxxxxx within the period from June 1, 2003 to December
31st 2003.
(iv) To remain reasonably available to Xxxxx and/or Xxxxxx, by phone
for consultation and for any other corporate purpose within the period from June
1, 2003 to December 31st 2003.
(v) Accept as permitted by paragraph 3 (c) above and sub-paragraph
(i) below, for a period of four (4) years from the date of this Agreement, to
not discuss with any third party, without the express prior consent of Xxxxx or
Xxxxxx, any confidential or proprietary information of VL or related to VL's
business, including but not limited to VL's business plans, proprietary product
information, pricing plans, vendor relationships, or any confidential or
proprietary information of VL obtained by Employee during the term of the
Employment Agreement, provided that the restrictions set forth in this Paragraph
4(g)(v) shall not apply to any information generally known to the public or
disclosures by Employee to any of his attorneys or immediate family members or
as may be required by a duly issued subpoena or other legal notice or
administrative or court order, after written notice of the receipt of such
subpoena or other legal notice or administrative or court order and the
opportunity of the Company to contest the same. Notwithstanding the foregoing,
solely in connection with obtaining employment, Employee shall be able to
describe to a potential employer the nature of his duties and responsibilities
at VL provided that in such descriptions, no confidential or proprietary
information is disclosed.
7
(vi) Employee agrees to not solicit any existing employees or board
members for other business endeavors or to leave the employ of the Company.
(h) Non Competition. For a period of two (2) years from the date of
this Agreement, Employee shall not, directly or indirectly, whether as a
partner, employee, creditor, shareholder, or otherwise, promote, participate, or
engage in any activity or other business directly competitive with VL's
business.
(i) Communications with the SBA. Other than as set forth in the last
sentence of this paragraph, Employee agrees not to communicate with the SBA or
Commerce Bank (or any other successor entity or agency) regarding the SBA Loan
unless Xxxxx or Xxxxxx are on any such phone call or in person at any such
meeting. In addition, Employee shall not send any correspondence to the SBA or
Commerce Bank (or any other successor entity or agency) regarding the SBA Loan
unless such correspondence has been approved in writing by VL. If either
pursuant to the SBA Loan or an inquiry from the SBA, or otherwise requested by
legal process or court or administrative agency, Employee is required to provide
information, Employee shall (A) first provide written notice to VL as to the
nature of the inquiry or information required to be furnished, (B) respond to
any concerns of VL, and (C) provide such information to the requesting party
with a copy of such information being furnished to VL, provided, however, that
Employee shall not be required to provide personal information regarding
Employee, such as tax returns, etc., to VL.
5. NO DISPARAGEMENT; CONFIDENTIALITY. The parties agree that they will hold the
terms of this Agreement in confidence, and they will not discuss the terms of
this Agreement with any third parties, including without limitation, all
current, past or future employees of VL, but excluding disclosures to their
attorneys, immediate family members, in a court of law or other administrative
proceeding or in connection with enforcing their rights under this Agreement, or
as compelled by a court of law. The parties further agree that they will not
publicly or privately make any disparaging, unkind, unflattering, or otherwise
inflammatory remarks about the other party or its conduct, operations or
business practices, policies or procedures. The parties acknowledge that this
provision is of the essence of this Agreement.
6. EFFECTIVE DATE. The parties agree that this Agreement shall be revocable by
Employee for seven (7) days (the "Revocation Period") following the date that
Employee signs this Agreement. Such revocation shall be made by Employee by
sending a written letter of revocation by certified mail, return receipt
requested to Xxxxxx X. Xxxxxx, c/o Vital Living, Inc., 0000 X. 00xx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx, 00000. If Employee does not revoke this Agreement
in accordance with the terms of this paragraph on or before the expiration of
the Revocation Period, this Agreement shall automatically and without any
further act by Employee become final and binding upon VL and Employee on the
first day succeeding the expiration of the Revocation Period.
7. NO REPRESENTATIONS; OPPORTUNITY FOR REVIEW BY COUNSEL. Employee hereby
warrants that except as expressly set forth herein, no representations of any
kind or character have been made to Employee by VL or any agent, representative,
employee or attorney of VL's (or anyone else purporting to act in such capacity)
to induce Employee to execute this Agreement. Each
8
party hereto hereby acknowledges that such party has had an adequate opportunity
to have this document reviewed by an attorney or other representative of their
respective choice, and that each party fully understands the contents of this
Agreement.
8. MISCELLANEOUS.
(a) This agreement shall be interpreted and enforced in accordance
with the laws of the United States of America and the State of
Arizona.
(b) This Agreement and its Exhibits and attachments represent the
sole and entire agreement between the parties and, except as
otherwise set forth herein, supersedes any and all prior agreements,
negotiations and discussions between the parties and/or their
respective counsel with respect to the subject matters covered in
this Agreement.
(c) Each party will bear its own attorneys' fees and costs incurred in
connection with Employee's separation from VL. However, in the event
that any action, suit, or other proceeding is instituted to remedy,
prevent, or obtain relief from a breach of this Agreement, or
arising out of a breach of this Agreement, the parties agree that
venue for any such action shall lie within the County of Maricopa,
State of Arizona and that the prevailing party shall recover all of
such party's reasonable attorney's fees and costs (including,
without limitation the costs of expert consultants and expert
witnesses) incurred in each and every such action, suit, or other
proceeding, including any and all appeals or petitions therefrom.
(d) Unless other contact persons are identified herein, contact to
Employee shall be made through Employee and contact to VL shall be
made directly Xxxxx and/or Xxxxxx. Employee acknowledges and agrees
that contacts with VL representatives other than as provided for
herein shall be ineffective and shall not be deemed, constructive or
actual notice of any kind.
(e) If one or more paragraphs(s) of this Agreement are ruled invalid
or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement, which shall remain in
full force and effect.
(f) As used in this Agreement, the term "VL" shall mean Vital
Living, Inc., as well as its subsidiaries, divisions and affiliated
organizations as well as their respective successors and assigns,
together with their directors, officers, employees, agents,
attorneys, representatives, shareholders and their respective heirs
and personal representatives.
(g) This Agreement may not be modified orally but only in writing
signed by both parties to this Agreement.
(h) This Agreement shall be binding on the parties hereto and on their
heirs, administrators, representatives, executors, successors, and
assigns and shall inure
9
to the benefit of said parties and each of them, and to their heirs,
administrators, representatives, executors, successors, and assigns.
(i) This Agreement may be signed in counterparts and, when signed, shall
be interpreted in accordance with the plain meaning of its terms and
not strictly for or against any of the parties to this Agreement.
10
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first set forth above.
Witnesses: Employee
---------------------------
--------------------------------------
Xxxxxxx Xxxxxx
---------------------------
VITAL LIVING, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
11
EXHIBIT "A"
AGE DISCRIMINATION WAIVER
Vital Living, Inc.
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Reference is made to that certain Settlement and Release Agreement (the
"Agreement") dated as of June __, 2003 between Vital Living, Inc. and the
undersigned. Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement. This letter is the Age Discrimination
Waiver Letter referred to in this Agreement and delivered by the undersigned
pursuant to Paragraph 2(b)thereof.
The undersigned (on his own behalf and on behalf of his heirs or personal
representatives or any other person who may be entitled to make a claim on
the undersigned's behalf or through his representatives) hereby releases and
discharges VL from any and all claims, charges, actions and causes of action
of any kind or nature that the undersigned had or now has up to the date of
the Agreement under the Age Discrimination in Employment Act of 1967 arising
out of his employment or separation of employment with VL and whether such
claims are now known or unknown to the undersigned.
The undersigned agrees that he has had a full and fair opportunity to
review this Waiver Letter and signs it knowingly, voluntarily and without duress
or coercion. Further, in executing this Agreement, the undersigned agrees that
he has not relied on any representation or statement not set forth in this
document or the Agreement.
The undersigned agrees that he was given a period of at least 21 days to
consider this waiver letter before signing it, and that he had an opportunity to
consult with an attorney of his own choosing before signing the waiver letter
and that, in fact, he did consult with his own attorney before signing it.
The waiver letter is revocable by the undersigned for seven (7) days (the
"Revocation Period") following his delivery of the executed waiver letter to VL.
If the undersigned desires to revoke it, he shall send his letter of revocation
by certified mail, return receipt requested to Xxxxxx X. Xxxxxx, c/o Vital
Living, Inc., 0000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, 00000. If not
revoked prior to the expiration of the Revocation Period, the waiver letter
shall become final and binding on the undersigned on the first day succeeding
the expiration of the Revocation Period (such date referred to herein as the
"Age Discrimination Waiver Effective Date"). In delivering this Age
Discrimination Waiver Letter, it is the express intent of the undersigned to
waive his
12
rights under, and in accordance with the requirements of the Age Discrimination
in Employment Act of 1967 and that in the event of any failure or
ineffectiveness of such waiver, VL shall not have received the benefits intended
to be conferred upon it by the undersigned in exchange for the benefits
conferred by VL to the undersigned under the Agreement. Accordingly, the
undersigned agrees that in the event the Age Discrimination Waiver Letter is
deemed ineffective or unenforceable for any reason, then the Age Discrimination
Waiver Effective Date shall be deemed not to have occurred and the benefits
conferred upon the undersigned pursuant to the Agreement shall be forfeited.
Very truly yours,
-------------------------------
Xxxxxxx Xxxxxx
Dated: June , 2003
13
EXHIBIT "B"
CREDIT CARD STATEMENTS
14
EXHIBIT "C-1"
RESIGNATION
I, Xxxxxxx Xxxxxx, hereby resign as the President of Vital Living, Inc. (the
"Company") and as a director of the Company effective as of June __, 2003. My
employment agreement with the Company has also been terminated by myself and the
Company as of that date.
Date: June , 2003 -----------------------------------
Xxxxxxx Xxxxxx
15
EXHIBIT "C-2"
SEC LETTER
I have read the information relating to my resignation as president and as
a member of the Board of Directors of Vital Living, Inc., set forth in Item 6 of
that certain Form 8-K, dated June __, 2003. I hereby confirm that the summary is
correct and that there are no disagreements as to operations, policies or
practices of the Company.
Date: June , 2003 -----------------------------------
Xxxxxxx Xxxxxx
16
